A federal judge today sentenced a Brooklyn pizzeria owner to five years in prison for possessing child pornography, but protested that his hand was forced by a law he believes is unconstitutional.

Judge Jack Weinstein in Brooklyn federal court noted that he was forced to overturn his earlier sentence of one year and a day for Pietro Polizzi after the US Second Circuit Court of Appeals intervened and ordered him to apply the penalty mandated by law.

Before handing down the new sentence, the judge expressed his view that the statute’s mandatory minimum penalty of five years was too extreme given the circumstances of the case.

“I find it’s grossly excessive,” Weinstein said.

Polizzi, 56, was convicted three years ago after a jury trial in which he claimed insanity and testified that he was himself a victim of child molestation as a boy growing up in his native Italy.

The judge criticized the law – enacted by Congress – and suggested that it violates the separation of powers provisions of the Constitution by usurping the discretion given judges to sentence defendants based on a wide variety of factors in an effort to achieve justice.

“There is a substantial issue of law,” Weinstein said, about a federal statute that “gives this court no discretion whatsoever” in tailoring the punishment to fit the facts of the case.

Weinstein addressed the issue in detail in a 26-page opinion issued last spring, but was later overturned by the federal appellate court and ordered to re-sentence Polizzi according to the narrow dictates of the law.

The judge also ruled today that he would not honor a mandatory legal provision requiring that Polizzi be immediately remanded to jail, declaring that also to be an unconstitutional legislative transgression of judicial authority.

He allowed Polizzi to remain on bail and to surrender to authorities in March.

Before he was sentenced, Polizzi broke down sobbing as he address the court and spoke about his own molestation as a boy in Sicily.

“I was a child once,” Polizzi said as he wiped away tears. “My childhood life was taken away from me. I’m a victim. I am not an abuser.”